Ferguson v. Thaemert, 120920 SDSC, 29021-r-DG

Docket Nº:29021-r-DG
Party Name:ALYSSA FERGUSON, Plaintiff and Appellee, v. BRADLEY C. THAEMERT, M.D., Defendant and Appellant.
Attorney:DANIEL K. BRENDTRO ROBERT D. TRZYNKA of Hovland, Rasmus, Brendtro, & Trzynka, Prof. LLC Sioux Falls, South Dakota Attorneys for plaintiff and appellee. MARK W. HAIGH TYLER W. HAIGH of Evans, Haigh & Hinton, LLP Sioux Falls, South Dakota Attorneys for defendant and appellant.
Judge Panel:KERN, Justice, dissents. SEVERSON, Retired Justice, sitting for SALTER, Justice, disqualified. KERN, Justice (dissenting)
Case Date:December 09, 2020
Court:Supreme Court of South Dakota

2020 S.D. 69

ALYSSA FERGUSON, Plaintiff and Appellee,


BRADLEY C. THAEMERT, M.D., Defendant and Appellant.

No. 29021-r-DG

Supreme Court of South Dakota

December 9, 2020

Argued April 22, 2020


DANIEL K. BRENDTRO ROBERT D. TRZYNKA of Hovland, Rasmus, Brendtro, & Trzynka, Prof. LLC Sioux Falls, South Dakota Attorneys for plaintiff and appellee.

MARK W. HAIGH TYLER W. HAIGH of Evans, Haigh & Hinton, LLP Sioux Falls, South Dakota Attorneys for defendant and appellant.



[¶1.] Dr. Bradley Thaemert performed the incision for an anterior spinal surgery on Alyssa Ferguson. Ferguson sued Dr. Thaemert for lack of informed consent after he performed a vertical incision rather than her requested horizontal incision. Ferguson brought a motion to compel the production of medical records of Dr. Thaemert's non-party patients. The circuit court granted the motion in part. Dr. Thaemert brings this intermediate appeal arguing the circuit court abused its discretion. We reverse the circuit court's decision.

Facts and Procedural History

[¶2.] Alyssa Ferguson (Ferguson) underwent an anterior spinal surgery with Dr. Walter Carlson (Dr. Carlson), a spine surgeon, and Dr. Bradley Thaemert (Dr. Thaemert), a general surgeon, to relieve lower back pain. The surgery was elective, but is a major surgery, involving an incision through the abdominal muscles into the peritoneal cavity to reach the spine through the front of the body. Dr. Thaemert was tasked with making the incision allowing access to the spine, so Dr. Carlson could perform the spinal surgery.

[¶3.] When Ferguson met with Dr. Thaemert for a pre-operation evaluation, they discussed her desire to have a horizontal incision below the bikini line, rather than a vertical incision, "if at all possible." Ferguson wanted the horizontal incision for cosmetic reasons as well as for ease of having a caesarian section in the future. Ferguson claims that at the meeting Dr. Thaemert promised to do the surgery with a horizontal incision, and that she relied on that promise in undergoing the surgery. Dr. Thaemert testified at his deposition that, while he cannot specifically recall the conversation, he would never make a promise to perform any particular type of incision. He testified that he always advises his patients in the pre-operative discussion that he must use the safest incision during the surgery. That determination is made, according to Dr. Thaemert, by assessing the fat on the abdomen and where an incision would need to be placed under the fat.

[¶4.] Ferguson signed an informed consent form before the surgery, which provided consent for any procedures necessitated by changed conditions during the surgery. Dr. Thaemert claims that in the operating room, after Ferguson was under anesthesia, he assessed her abdomen and determined a vertical incision would be the safest way to allow Dr. Carlson access to the spine, so he made the vertical incision. A radiology technician who is a friend of Ferguson testified that he was in the surgical suite while anesthesia was being administered to Ferguson and heard Dr. Thaemert, as he entered the operating room, ask if this was his horizontal incision case and if anyone had notes on that.

[¶5.] When Ferguson learned after the surgery that Dr. Thaemert had made a vertical incision, she was upset and asked her nurses and Dr. Carlson if something had gone wrong in the surgery to necessitate the vertical incision. No one knew of any complication in the surgery. Ferguson was unable to contact Dr. Thaemert to ask about the incision. Finally, Dr. Thaemert called Ferguson at Dr. Carlson's behest. Ferguson claims Dr. Thaemert told her that nobody informed him that she was the horizontal incision case that day, and then told her the scar should not be too bad and that his daughter's appendix scar was not bad. He advised Ferguson to keep the scar out of sunlight for a year and apply zinc oxide to it. Dr. Thaemert testified that he does not remember the specifics of the phone call.

[¶6.] While the surgery was successful, Ferguson maintains that she would not have gone through with the surgery on that day if she had known Dr. Thaemert would not perform a horizontal incision. Dr. Thaemert asserts that he always makes clear to his patients that he will use whichever incision will be safest, assessed at the time of surgery.

[¶7.] Ferguson sued Dr. Thaemert alleging that he performed the vertical incision without Ferguson's informed consent. Dr. Thaemert denied Ferguson's allegations. Ferguson's counsel requested discovery of "all medical records of any patients on whom [Dr. Thaemert] performed incisions, for anterior spinal fusions at or below the L4 level, during the past 5 years without identifying the patient consistent with . . . Wipf v. Al[t]stiel[.]" Dr. Thaemert objected to the request as being irrelevant, not reasonably calculated to lead to the discovery of admissible evidence, vague, violating HIPAA, and otherwise seeking protected health information that could not be disclosed under South Dakota law. After some back and forth between the parties' counsel, Ferguson brought a motion to compel those non-party patients' medical records.

[¶8.] The motion to compel was considered at a hearing along with other motions not at issue here. Ferguson argued that the records are relevant because Dr. Thaemert's credibility is at issue, and a jury needs to be able to gauge the credibility of his testimony that his general practice is to discuss and document things the way he did with Ferguson. Ferguson argued that the records "would allow us to figure out how he proceeds with horizontal incisions, how they're conducted, why they're performed, which patient receives them, their body types, the notes he makes about them, [and] how often he changes his mind while on the operating table." She asserted that the records would reveal Dr. Thaemert's typical procedure for obtaining informed consent and would allow a jury to check that credibility. Finally, Ferguson argued that Wipf v. Altstiel, 2016 S.D. 97, 888 N.W.2d 790, provides "the solution for how we deal with sensitive health information."

[¶9.] Dr. Thaemert argued that Ferguson's request to review non-party patient medical records was made simply to burden him into settling the case and was based on Ferguson's belief that if she is allowed to see the records, it is possible something helpful may be found. Dr. Thaemert also asserted that this case is solely about his treatment of Ferguson and whether he failed to obtain her informed consent. He argued that other patients' records are entirely irrelevant to the question of whether Ferguson gave informed consent. Finally, Dr. Thaemert asserted that there is "no relevant evidence that can be gotten from these records that would support the burden that plaintiff wants to place on us."

[¶10.] The circuit court granted the motion to compel in part and denied it in part. The court found the records were relevant because Dr. Thaemert has no specific recollection of his conversation with Ferguson and relies entirely on his general practice. However, the circuit court limited the scope of the discoverable records to pre-operation and operation notes, consult notes, age, gender, and body mass index (BMI) of patients who had anterior spinal fusion incisions at or below L4 level in the last three years, finding the five-year time frame to be unreasonably cumulative. Dr. Thaemert filed a petition for allowance of appeal from an intermediate order, which we granted. He raises one issue restated as follows: whether the circuit court abused its discretion in determining that confidential, non-party patient records are relevant to this case and discoverable when patient identifiers are redacted from the documents.

Standard of Review

[¶11.] A circuit court's discovery orders are reviewed for an abuse of discretion. Andrews v. Ridco, Inc., 2015 S.D. 24, ¶ 14, 863 N.W.2d 540, 546. "An abuse of discretion 'is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which on full consideration, is arbitrary or unreasonable.'" Id. (quoting In re Jarman, 2015 S.D. 8, ¶ 19, 860 N.W.2d 1, 9). When determining whether a discovery order violated a statute, "it raises a question of statutory interpretation requiring de novo review." Id. (quoting Dakota, Minn. & E. R.R. Corp. v. Acuity, 2009 S.D. 69, ¶ 47, 771 N.W.2d 623, 636).

Analysis and Decision


[¶12.] Pretrial discovery has a broad scope. Kaarup v. St. Paul Fire & Marine Ins. Co., 436 N.W.2d 17, 19 (S.D. 1989). The broad scope ensures the purposes of discovery-"(1) narrow[ing] the issues; (2) obtain[ing] evidence for use at trial; (3) secur[ing] information that may lead to admissible evidence"-are satisfied. Id. "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]" SDCL 15-6-26(b). "Evidence is relevant if: (a) [i]t has any tendency to make a fact more or less probable than it would be without the evidence; and (b) [t]he fact is of consequence in determining the action." SDCL 19-19-401. But the definition of relevance at the discovery stage is broad so that it allows for discovery of "information that may lead to admissible evidence at trial." Kaarup, 436 N.W.2d at 20. "It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." SDCL 15-6-26(b).

[¶13.] Dr. Thaemert...

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